Rawlings v. Armel

79 P. 683, 70 Kan. 778, 1905 Kan. LEXIS 49

• Court: Supreme Court of Kansas
• Decided: February 11, 1905
• Docket: No. 13,950
• Status: Published

Opinion

The opinion of the court was delivered by

Burch, J. :

The understanding of the parties referred to in the question set out in the first assignment of error was expressed in written instruments • hence, the question was manifestly improper.

The record discloses that the drilling referred to in the question set out in the second assignment of error was done upon land other than that in controversy, subsequently to the time the rights of the parties to this suit became fixed; hence, the question was manifestly improper.

It was not prejudicial error to exclude an answer to-the first question set out in the third assignment of error because the witness had already, without objection, stated his thoughts and intentions regarding an abandonment of the Armel land, and later in his examination went over practically the same ground again.

The second question set out in the third assignment of error stated the principal issue in the case. To-permit an answer would have been to allow the witness to usurp the function of the judge and decide the controversy ; hence, the question was manifestly improper.

The fourth and fifth assignments of error assert that the judgment is not sufficiently sustained either by fact or by law.

The court found generally for the plaintiff, and hence found that the lessee abandoned the leased premises. The question of. abandonment is one of fact, depending upon intention and conduct. (Thorn. Oil & Gas, §137; Bryan, Petr. & Nat. Gas, § 205; see, also, 1 Snyd. Mines, § 512.) If, when the lessee removed the casing from the dry wells, removed its material, machinery, and tools, went away from the land, and neglected to pay rent, it did so intending never to return, the court was justified in finding that it abandoned the project.

The lease bore a well-understood character. The contemplated benefit to the lessor consisted in royalties. The provision for rent was not, as in Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625, an alternative which the lessee might adopt and thereby relieve itself from drilling and operating. Its purpose was to incite speedy development of the property, and, hence, early payment of royalties. The lessee had the right to enter and explore, and to operate, if oil or gas should be discovered, but no estate in the land would vest unless mineral should be found and worked. Until that time the preliminary right was of such a character that it could be lost by abandonment, without the lapse of time prescribed by the statute of limitations.

The stipulation for surrender by the lessee after two years did not imply that title should vest before oil or gas should be found and produced. It merely enabled the lessee to relieve itself of the burden of operating an unprofitable property if oil or gas should not be found in paying quantities.

The tender of rent made after suit was commenced was unavailing. When abandonment in fact occurred, the lease was subject to cancelation. Rent was due when the lessee deserted the land. The right to pay was abnegated in the abandonment, and the lease could not be revivified against the will of the lessor by a belated offer to pay.

The parties were before the court in person. They gave interpretations of their conduct and versions of their claims. The facts and circumstances of the removal in themselves afforded some evidence of abandonment. It was the duty of the court to weigh those facts in connection with all the other evidence in the case. The presumption is that it did so. There is substantial evidence to support the judgment on the ground of abandonment and this court cannot interfere.

The case is argued as if the judgment of forfeiture were based upon the fact of the non-payment of rent at the expiration of six months from the date of the lease, as well as upon the fact of abandonment, and such may have been the decision. If so, it was correct. Although time was not expressly stated to be of the essence of the contract, yet the stipulation for forfeiture is to be strictly construed for the lessor’s benefit, and it is not shown that any inequitable or unconscionable result attends the declaration of forfeiture in this case. (Edwards v. Gas Co., 65 Kan. 362, 69 Pac. 350.)

The assignees of the lease contend that the time for the payment of rent was extended until six months after the latest date agreed upon for commencing drilling operations. Such an interpretation of the lease and extension agreements is unwarranted.

The covenant in the lease to pay rent is separate and distinct from the provision relating to the time for beginning to drill. It requires rent to be paid after six months from May 21, 1902, for each piece of land in which wells had not been drilled and operated. The lease itself provided for one extension of time in which to begin drilling, but such provision is followed by the peremptory requirement that rent be paid, even though the commencement of operations be delayed. The subsequent extension agreements belong to the same category with the one contained in the lease itself. Neither in express terms nor by necessary implication do they relate to any subject except that of time in which to institute operations, and the covenant to pay rent remains unchanged.

From all this it follows that upon either theory of the case the judgment of the district court must be affirmed, and it is so ordered.

All the Justices concurring.